August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTHA CHAVARRIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. A-475-05-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Reisner and Sapp-Peterson.
Defendant, Martha Chavarria, appeals from the September 25, 2008 order denying reconsideration of her Pre-Trial Intervention (PTI) application which was rejected by the Hudson County Superior Court Criminal Division Manager (Division Manager). We affirm.
At the outset, at the time the present appeal was filed, defendant was awaiting sentencing on her guilty plea to fourth-degree possession of false government documents, N.J.S.A. 2C:21-2.1. As such, all issues had not been resolved prior to filing the notice of appeal. We therefore agree with the State that the order from which the appeal has been taken is interlocutory. Nonetheless, in the interest of justice, we grant leave to appeal the interlocutory order nunc pro tunc. R. 2:2-4(b)(2).
The guilty plea defendant entered was part of a negotiated plea agreement. In exchange for the guilty plea, the State agreed to recommend probation and did not object to defendant's application for admission into PTI.*fn1 Although not raised as an issue by defense counsel, we note that the guidelines for admission into PTI make clear that "[e]nrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty." Hence, defendant should not have been required to first plead guilty to the offense charged as a condition for admission into the program. That said, we address the merits of the argument raised by defendant.
Defendant claims the Division Manager denied her admission into the program based solely upon her illegal status and the nature of the charge against her, which denial constitutes a "gross abuse of discretion, egregious injustice and unfairness." We disagree.
Prior to defendant appealing the rejection of her PTI application to the Law Division, the Division Manager, in a July 28, 2008 letter responding to correspondence from defendant's attorney requesting "the rejection memorandum from the Pre-Trial Intervention Program[,]" stated:
In this case, the correct page of the UDIR [Uniform Defendant Intake Report] form was not used. Nonetheless, I instructed [the probation officer] that M[r]s. Chavarria should be rejected from PTI because she was in the United States illegally. I note that Mrs. Chavarria admits to being in the United State[s] and New Jersey for a total of eleven years. However, it appears she has done nothing to legalize her status during this time.
In addition, M[r]s. Chavarria purchased a forged driver's license to use as identification. It is my position that all of the above do not make M[r]s. Chavarria a suitable candidate for Pre[-]Trial Intervention.
In the letter brief submitted in support of defendant's appeal of the rejection to the Law Division, defense counsel argued that denial of admission into the program based upon defendant's illegal status and because she purchased a forged driver's license to use as identification, was a patent and gross abuse of discretion by the Division Manager and constituted an "egregious injustice and unfairness to defendant." During oral argument, however, considerable colloquy occurred between the court and defense counsel as to whether defendant had resided illegally in the United States for eleven years as reflected in the presentence report.
According to defense counsel, defendant, from 1982 to 1990, was a legal resident as a result of her mother's petition, but then returned to Honduras in 1990, where she remained for fifteen years before returning to the United States in 2005. Defense counsel therefore urged that defendant had not been in this country illegally. Defendant's presentence report notes that defendant claimed she returned to the United States in 2005 on a two-year visa and that she was working with an immigration lawyer to remain in the United States. In response, the prosecutor observed that defendant failed to submit any documentation to support her contentions and that as a result, the Division Manager properly rejected her application.
In upholding the rejection, the motion judge observed:
While the defendant bases this appeal on the claim that her rejection was a per se exclusion based upon her legal status, . . . a careful review of the Division Manager's rejection notice shows that the rejection was based on several factors of which her illegal status was just one factor considered. The Criminal Division Manager denied Miss Chavarria's application to PTI not only because of her illegal status, but because she had remained in the country illegally for 11 years and made no effort to change her status. In addition, she had obtained and possessed a forged driver's license which she used both as identification and as a means to operate a motor vehicle.
In State v. Caliguiri, 158 N.J. 28, 35 (1999), our Supreme Court described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admission into PTI is governed by both statute, N.J.S.A. 2C:43-12, and court rule. R. 3:28. The scope of judicial review of a decision to reject a PTI application is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and our interference in a court's decision upholding the denial of an application is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Thus, the standard we employ in our review of PTI decisions has been referred to as "'enhanced'" or "'extra'" deference. State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Kraft, supra, 265 N.J. Super. at 111). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. A defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "patent and gross abuse of . . . discretion." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002). Applying this test, if a rejected defendant can prove that the decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment," then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979).
Based upon this record, we discern no such abuse. It is evident from the language of the Division Manager's July 28 letter that defendant's application was unaccompanied by documents that supported her representations as to her status in the United States between 1982 and 1990, and later as of 2005. Additionally, although fully aware of the Division Manager's reasons for rejecting defendant's application, defense counsel submitted no further documents to the Division Manager, but instead appealed to the Law Division and supplied the court with no additional documents to support the arguments advanced during the hearing.
Defendant may have been less than diligent in supplying the requisite documentation with her initial PTI application because the prosecutor did not object to her application for admission into PTI. However, once the Division Manager's letter concluded, incorrectly according to defendant, that defendant had been illegally in the United States for eleven years and had not done anything to legalize her status, defendant had two additional opportunities to produce documentation to support her claims otherwise. Defense counsel could have submitted the requisite documentation after receiving the July 28 letter, and if the documentation was not easily available, requested more time to gather the information. That was not done. Instead, defendant appealed the rejection to the Law Division.
Before the Law Division, defendant could have supplied additional supporting documentation, including an affidavit from defendant setting forth the particulars of her prior domestic situation that prevented her from producing documentation, as suggested by defense counsel during oral argument. Even if no such documentation existed, the appropriate affidavits that explained the circumstances could have been submitted. This was not done. Rather, the only response to the lack of documentation occurred during oral argument when defense counsel stated:
Your Honor, I would argue that somebody running for their life being a battered wife, is scared, but does not pick up . . . the documents. She's trying to save her kids and herself from an abusive husband. It's a reality. It goes through the courts constantly. She . . . could provide that, she would have to go back in time and go back where she was with her husband. And, you know, she didn't do that because she wanted to save herself and her children.
And I would argue that as to the relevancy of not having documents at this point.
Under these circumstances, we are not persuaded that defendant's rejection was a patent and gross abuse of discretion.
Nonetheless, in view of the fact that as part of the negotiated plea agreement, the prosecutor did not object to defendant's application for entry into PTI and sentencing is still pending, we see no bar to plaintiff seeking further review of her application by the Division Manager if she submits documentation that addresses the concerns raised in the Division Manager's July 28 letter and corroborates the information she provided to the probation officer about her status as reported in the presentence report. We express no view as to the outcome of such a further review.